COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-282-CR
KYLE EDWARD ALEXANDER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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OPINION
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Pursuant to a plea bargain agreement, Kyle Edward Alexander pleaded
guilty to aggravated assault with a deadly weapon. On June 18, 2007, the trial
court placed him on five years’ deferred adjudication community supervision
and, in the conditions of community supervision attached to the “Unadjudicated
Judgment on Plea of Guilty or Nolo Contendere and Suspending Imposition of
Sentence,” ordered him to pay restitution in the amount of $10,871.25 as a
condition of his community supervision. The State filed a petition to proceed
to adjudication on June 19, 2008, alleging that Alexander had violated four
conditions of his community supervision. Alexander pleaded “true” to all four
violations. The trial court found that all four paragraphs of the petition were
true, adjudicated Alexander guilty, and sentenced him to ten years’
confinement. The trial court’s written judgment included an order that
Alexander pay $10,311.25 in restitution. Alexander appeals from the trial
court’s determination to proceed to an adjudication of guilt.
Alexander’s court-appointed appellate counsel has filed a motion to
withdraw as counsel and a brief in support of that motion. In the brief, counsel
reviewed the history of the case and detailed the evidence presented.
Counsel’s brief and motion meet the requirements of Anders v. California 1 by
presenting a professional evaluation of the record demonstrating why there are
no reversible grounds on appeal and referencing any grounds that might
arguably support the appeal. See Mays v. State, 904 S.W.2d 920, 922–23
(Tex. App.—Fort Worth 1995, no pet.). This court afforded Alexander the
opportunity to file a brief on his own behalf, but he did not do so.
Once an appellant’s court-appointed attorney files a motion to withdraw
on the ground that the appeal is frivolous and fulfills the requirements of
Anders, this court is obligated to undertake an independent examination of the
1
… 386 U.S. 738, 87 S. Ct. 1396 (1967).
record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);
Mays, 904 S.W.2d at 922–23. Only then may we grant counsel’s motion to
withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351
(1988).
We have carefully reviewed counsel’s brief and the record. The record
shows that after the trial court adjudicated Alexander’s guilt, it did not include
a restitution order in its oral pronouncement of Alexander’s sentence. Yet the
trial court’s written judgment adjudicating Alexander’s guilt includes an order
that he pay $10,311.25 in restitution.
A trial court’s pronouncement of sentence is oral, while the judgment,
including the sentence assessed, is merely the written declaration and
embodiment of that oral pronouncement. See Tex. Code Crim. Proc. Ann. art.
42.03, § 1 (Vernon 2006) (providing that “sentence shall be pronounced in the
defendant’s presence”). When the oral pronouncement of sentence and the
written judgment vary, the oral pronouncement controls. Taylor v. State, 131
S.W.3d 497, 500 (Tex. Crim. App. 2004); Coffey v. State, 979 S.W.2d 326,
328 (Tex. Crim. App. 1998). The rationale for this rule is that “the imposition
of sentence is the crucial moment when all of the parties are physically present
at the sentencing hearing and able to hear and respond to the imposition of
sentence. Once he leaves the courtroom, the defendant begins serving the
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sentence imposed.” See Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim.
App. 2002).
When an accused receives deferred adjudication, no sentence is imposed.
See Davis v. State, 968 S.W.2d 368, 371 (Tex. Crim. App. 1998); Abron v.
State, 997 S.W.2d 281, 282 (Tex. App.—Dallas 1998, pet. ref’d). When the
accused violates a condition of community supervision, the court may proceed
to adjudicate guilt and to assess punishment. Tex. Code Crim. Proc. Ann. art.
42.12, § 5(a) (Vernon 2006); Taylor, 131 S.W.3d at 499. Thus, when guilt is
adjudicated, the order adjudicating guilt sets aside the order deferring
adjudication, including any previously imposed fines. Taylor, 131 S.W.3d at
501–02 (noting that deferred adjudication differs in this regard from regular
probation, where a fine orally pronounced at sentencing survives revocation of
probation); Abron, 997 S.W.2d at 282.
In Abron, the order deferring adjudication assessed a fine as a condition
of community supervision. 997 S.W.2d at 282. The judge later adjudicated
the defendant’s guilt and did not orally pronounce a fine, but he did include the
fine in the written judgment. Id. On appeal, the Dallas court modified the
judgment to delete the fine because it was not orally pronounced as part of the
defendant’s sentence. Id.; see also Ex parte Cavazos, 203 S.W.3d 333, 338
(Tex. Crim. App. 2006) (holding that restitution is punishment); Brown v. State,
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No. 02-08-00063-CR, 2009 WL 1905231, at *2 (Tex. App.—Fort Worth July
2, 2009, no pet. h.) (mem. op., not designated for publication) (holding that
restitution is punishment that is part of a defendant’s sentence and, therefore,
must be included in the trial court’s oral pronouncement of sentence to be
properly included in the written judgment).
Thus, here, the judgment adjudicating Alexander’s guilt set aside the
unadjudicated judgment previously entered by the trial court that included as an
attached condition of his community service the requirement that he pay
restitution in the amount of $10,871.25. See Taylor, 131 S.W.3d at 502;
Abron, 997 S.W.2d at 282. And the trial court did not include an order for
restitution in its oral pronouncement of sentence upon Alexander. Because the
requirement that Alexander pay $10,311.25 in restitution is punishment and
part of his sentence in the judgment adjudicating his guilt, it must have been
included in the trial court’s oral pronouncement of sentence to be properly
included in the written judgment. See, e.g., Taylor, 131 S.W.3d at 502; Abron,
997 S.W.2d at 282. Thus, we reform the trial court’s judgment to delete the
language regarding the payment of restitution. See Bray v. State, 179 S.W.3d
725, 726 (Tex. App.—Fort Worth 2005, no pet.) (en banc) (holding that an
appellate court has the authority to reform a judgment in an Anders appeal and
to affirm that judgment as reformed).
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Except for this necessary modification to the judgment, we agree with
counsel that this appeal is wholly frivolous and without merit; we find nothing
else in the record that arguably might support an appeal. See Bledsoe v. State,
178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly, we grant
counsel’s motion to withdraw and affirm the trial court’s judgment as modified.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
PUBLISH
DELIVERED: November 12, 2009
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